1. The purpose of permitting the State to appeal a
question
reserved is to allow the prosecution to obtain review of an
adverse legal ruling on an issue of statewide interest
important to the correct and uniform administration of the
criminal law which otherwise would not be subject to
appellate review. No formal procedural steps are required
by K.S.A. 22-3602(b) to appeal on a question reserved. All
that is necessary for the State to do to reserve a question
for presentation on appeal to the Supreme Court is to make
proper objections or exceptions at the time the order
complained of is made or the action objected to is taken,
laying the same foundation for appeal that a defendant is
required to lay.

2. An appellate court has jurisdiction to review an order
of
restitution, including an order modifying restitution, which
has been entered by a sentencing court.

3. When a sentence is fixed by the trial court within
permissible limits of the applicable statutes, the sentence
is not erroneous and in the absence of special circumstances
showing an abuse of judicial discretion, will not be
disturbed on appeal.

4. The discretion lodged within a court is not a
boundless, but
a judicial, discretion. It is a discretion limited to sound
judgment to be exercised, not arbitrarily, but with regard
to what is right and equitable under the circumstances and
the law.

Linus A. Thuston, county attorney, and Carla J.
Stovall,
attorney general, were on the brief for appellant.

W. Shane Adamson, of Law Offices of Edward W. Dosh,
of
Parsons, was on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.: This is an appeal by the State challenging the
district court's order conditionally relieving defendant Walter
Schulze from payment of restitution as a condition of probation.

Schulze pled guilty to aggravated battery, a violation of
K.S.A. 21-3414(a)(1)(B), a level 7 person felony. Schulze and
the victim had a fight, and Schulze broke the victim's jaw. At
the time of the plea, the amount of restitution was unknown.
Restitution in an unknown amount was ordered, and Schulze was
placed on 36 months' probation. Some 5 months later, restitution
was determined to be $14,026.92. A year later Schulze filed a
motion to modify restitution. The State opposed the motion. The
uncontroverted evidence is that Schulze lives in an old
farmhouse. He works two jobs and makes a total of $18,000 a
year. He has a wife and three school-age children who reside
with him and whom he supports. He has paid a total of $1,900 in
restitution, having made a payment in some amount each month.
His wife's job was terminated (her employer went out of
business), and she has been unable to find another job. Schulze
has no telephone because it was shut off by the telephone company
for nonpayment in the amount of $480. He owes a propane bill in the amount of $900. He is unable to obtain propane on credit,
so he heats the house with firewood, which he cuts. He is also
behind on two car payments, which could put his jobs in jeopardy
if his vehicle is repossessed.

The trial judge considered the above, plus other evidence
and the recommendation of Schulze's probation officer, and
released Schulze from the remainder of the restitution
requirement with the caveat that "[s]hould the defendant's
situation change and he comes into an unexpected revenue, or his
income increases dramatically between now and the end of his
regular probation, then I'll advise Ms. Minor and the Court will
take another look at it."

The State appeals. In its three and one-half-page brief,
the State appears to recognize there may be a jurisdictional
problem. In a short five-sentence paragraph, the State claims
jurisdiction based on an interlocutory appeal, illegal sentence
or illegal modification of a sentence, and as a question
reserved. This is not an interlocutory appeal.

The State's docketing statement contained in the flat file
states that the statutory authority for this appeal is K.S.A.
22-3602(b). K.S.A. 22-3602(b) provides:

"Appeals to the supreme court may be taken by the
prosecution from cases before a district judge as a matter of
right in the following cases, and no others:

(1) From an order dismissing a complaint, information or
indictment;

(2) from an order arresting judgment;

(3) upon a question reserved by the prosecution; or

(4) upon an order granting a new trial in any case involving
a class A or B felony or for crimes committed on or after July 1,
1993, in any case involving an off-grid crime."

"The purpose of permitting the State to appeal a question
reserved is to allow [the] prosecution to obtain review of an
adverse legal ruling on an issue of statewide interest important
to the correct and uniform administration of the criminal law
which otherwise would not be subject to appellate review.
State
v. Ruff, 252 Kan. 625, 629, 847 P.2d 1258 (1993). No
formal
procedural steps are required by K.S.A. 1994 Supp. 22-3602(b) to
appeal on a question reserved. All that is necessary for the
State to do to reserve a question for presentation on appeal to
the Supreme Court is to make proper objections or exceptions at
the time the order complained of is made or the action objected
to is taken, laying the same foundation for appeal that a
defendant is required to lay. City of Overland Park v.
Cunningham, 253 Kan. 765, 766, 861 P.2d 1316 (1993)."

We hold the issue of whether a trial judge can modify
probation by deleting or changing restitution and the procedure
to follow is an issue of statewide interest important to the
correct and uniform administration of the criminal law which
otherwise would not be subject to appellate review.

The State claims that altering the duty to pay restitution
at any time other than at revocation of community release is an
illegal modification of sentence pursuant to K.S.A. 21-4610(d)(1)
and K.S.A. 21-4603(d)(1). K.S.A. 21-4610 provides:

"(a)Except as required by subsection (d), nothing in
this
section shall be construed to limit the authority of the court to
impose or modify any general or specific conditions of
probation,
suspension of sentence or assignment to a community correctional
services program . . . .

. . . .

"(d) In addition to any other conditions of probation,
suspension of sentence or assignment to a community correctional
services program, the court shall order the defendant to comply
with each of the following conditions:

(1) Make reparation or restitution to the aggrieved party
for the damage or loss caused by the defendant's crime, in an
amount and manner determined by the court and to the person
specified by the court, unless the court finds compelling
circumstances which would render a plan of restitution
unworkable. If the court finds a plan of restitution unworkable,
the court shall state on the record in detail the reasons
therefor;

. . . .

(3) reimburse the state general fund for all or a part of
the expenditures by the state board of indigents' defense
services to provide counsel and other defense services to the
defendant. In determining the amount and method of payment of
such sum, the court shall take account of the financial resources
of the defendant and the nature of the burden that payment of
such sum will impose. A defendant who has been required to
pay
such sum and who is not willfully in default in the payment
thereof may at any time petition the court which sentenced the
defendant to waive payment of such sum or of any unpaid portion
thereof. If it appears to the satisfaction of the court that
payment of the amount due will impose manifest hardship on the
defendant or the defendant's immediate family, the court may
waive payment of all or part of the amount due or modify the
method of payment." (Emphasis supplied.)

We need not reach the illegal sentence issue. An appellate
court has jurisdiction to review an order of restitution entered
by a sentencing court. State v. Beechum, 251 Kan. 194,
202, 833
P.2d 988 (1992); see State v. Hinckley, 13 Kan. App. 2d
417, 777
P.2d 857 (1989). In Beechum, this court held we had no
jurisdiction to review the prison sentence but did have
jurisdiction to review the restitution issue. It follows that we
would have jurisdiction to review a modification of restitution
by the trial judge.

The State argues that the court relieved Schulze of his duty
to pay restitution without finding that he had no ability to pay.
However, the record shows the probation officer expressed her
view that she did not see any way that Schulze could pay $12,000
without completely bankrupting himself and neglecting his family.
The trial judge considered evidence of debts and income, as well
as Schulze's good faith efforts to pay, and used his discretion
when making the decision to waive the remaining restitution.
Additionally, the trial judge found that Schulze was not
attempting to evade restitution, because he had never missed a
monthly payment, but that compelling financial circumstances
existed which necessitated relief from the sizable bill. The
trial judge specifically stated that he was granting the motion,
based on the evidence.

In State v. Buckner, 223 Kan. 138, Syl. ¶ 6,
574 P.2d 918
(1977), the court stated that "[w]hen a sentence is fixed by the
trial court, within permissible limits of the applicable
statutes, the sentence is not erroneous and in the absence of
special circumstances showing an abuse of judicial discretion
will not be disturbed on appeal." The Buckner court
found the
sentencing court had abused its discretion in sentencing the
defendant to consecutive prison terms and noted:

"'The discretion lodged within a court is not a boundless,
but a judicial, discretion. It is a discretion limited to sound
judgment to be exercised, not arbitrarily, but with regard to
what is right and equitable under the circumstances and the law.'
(State v. Collins, 195 Kan. 695, 700, 408 P.2d 639.)"
223 Kan.
at 150.

In conclusion, judicial discretion was not exercised
arbitrarily in this case. Rather, the trial judge provided
specific reasons, after hearing testimony, for why he would make
an exception and suspend restitution in this case. The State's
argument that the judge did not make a finding that the
restitution plan was "unworkable" is not persuasive. Although
the trial judge did not use the term "unworkable" when he ruled
to suspend restitution, he clearly considered Schulze's evidence
of his financial difficulties when he found Schulze's
circumstances were exceptional and by implication found the plan
to be unworkable. The trial judge did not abuse his discretion
in doing so.